JURIST Guest Columnist Ed Richards
of Louisiana State University Law Center says that in the midst of
current concerns about the spread of the H1N1 virus (popularly known as
"swine flu"), passing more and stricter public health laws will neither
strengthen the public health system nor effectively contain the spread
of disease...

As
this is being written, H1N1 is not a major threat, but this could
change as the epidemic evolves. I want to look past the H1N1 outbreak
and focus attention on what we will carry away from it, however it
evolves. I am concerned because crisis-driven policy is easy to hijack,
resulting in laws with horrible unintended consequences. Over the past
four decades, public health crises have generated more than their share
of bad laws. Some only create false expectations, but others have lead
to great suffering and even death. I hope forewarned is forearmed for
H1N1.

Do We Need More Law?

It is not law per se
that I worry about. I am quite supportive of public health law as
expressed through administrative regulations and the broad exercise of
the police powers. While public health depends primarily on voluntary
cooperation, state public health agencies and the federal government
have tremendous powers
to deal with a public health crisis. The United States entered the
1970s with a public health system that had nearly tripled life
expectancy over the past 100 years through sanitation, which had nearly
wiped out the worst of the communicable diseases in the U.S., and which
was immunizing a sizable part of the population against seasonal flu.
All this, including the quarantine of individuals and whole regions,
had been managed through general grants of legislative power and
administrative regulations. This framework has not been declared
unconstitutional and as classic administrative law, there is no reason
to think the United States Supreme Court would stop deferring to agency
action in public health when it supports agency deference in all other
areas of administrative law.

The Interest Groups

What
I worry about are statutes, i.e., specific public health policies
passed into statutes to please interest groups. From quarantining
people who are coughing to taxing fat people, pushing for public health
statutes has become the rage at the CDC, federal and state
legislatures, and private foundations. These are driven by traditional
interest groups, such as employers worried about health care costs,
drug companies, military contractors who want to sell bioterrorism
monitors, and federal officials in recent administrations who wanted to
extend the national security state.

The last decade has seen a
new interest group arise: contract researchers operating out of
universities who live on grant funds to write new laws. No matter the
problem, their solution is a new law, because they make no money if
they admit that the problem is just that public health agencies do not
have the staff to do a job because they are broke, or that there is no
problem at all. Expect to see these groups calling for massive new
public health powers to deal with H1N1, claiming that public health
agencies and the federal government lack key powers. As noted below,
public health emergencies are fully integrated into our national
security laws, allowing the federal government essentially unlimited
powers if it chooses to use them. Perhaps the only real limit is that
since President Obama repudiated the torture memos, the torture of potential disease carriers is now off limits.

Untended Consequences - The Road to Hell

Concerns
with the public health consequences of illegal drug use in the 1960s
led to Nixon's war on drugs and Rockefeller's draconian drug laws,
which spread across the United States. These laws have had profound
unintended consequences and seem to slip the mind of public health law
scholars who tout the value of new public health statutes. In the
1980s, civil libertarians lobbied state legislatures and Congress to
protect persons with AIDS. The result was to make it nearly impossible
to do public health screening and case finding for HIV infection. This
exacerbated the AIDS epidemic and was only reversed as a matter of
federal policy in 2006.
Many states still have laws in place that limit disease control efforts
for HIV. (In several states, the entire disease control code was
revised, undermining the control of tuberculosis and other diseases.
These laws had to be revised again as tuberculosis surged in the 1990s.)

Post 9/11 and the anthrax letters, fears of bioterrorism lead the CDC to develop the Model State Emergency Health Powers Act
and push states to adopt it. This was criticized by many public law
scholars for being a dangerous intrusion into civil liberties and
probably also unworkable. More fundamentally, if you are versed in
national security law, you know that the push for public health
emergency powers laws at the state and federal level were derived from
the Bush/Cheney vision of the seamless national security state. Taken
with the Patriot Act and other national security laws, public health
and safety emergencies have been recharacterized as national security
threats, which creates paths for the use of the military in domestic
policing and the overruling of state public health authority by the
federal government.

The real problem with all of these laws is
that the problems they address are not problems of legal authority.
They do nothing to address the loss of resources and expertise from
health departments, and the weakness of political leaders when facing
difficult choices. We have created a system of Potemkin laws whose real
purpose is to allow legislatures to claim to have done something about
public health emergencies without spending the money or political
capital to address the weakness in the public health and medical care
system. Look how well these laws worked for Hurricane Katrina.
Louisiana had passed stacks of emergency powers laws after 9/11, had
done all the federal planning exercises, yet was completely unprepared
for Hurricane Katrina because that would have required spending money
and admitting that New Orleans could flood. Yet Katrina spawned another
deluge of federal and state emergency powers laws, passed as states
continued to cut their already inadequate health department budgets.

What We Did Not Learn From SARS

The most recent failure, and the one most on point with H1N1, was the reaction to the 2003 SARS
outbreak. Canada appointed a royal commission to study and make
recommendations about the lessons learned from SARS. The commission
published an excellent set of reports
on all aspects of the SARS epidemic and the government's response. The
commission was clear: strategies such as social distancing, not going
to work sick, and voluntary isolation can work only if the affected
individuals are supported by the employers and the government.
Individuals must have paid sick leave, worker's compensation must cover
workplace acquired infection, there must be health insurance coverage
for personally acquired illness, and employers and others institutions
must workout the details of mandatory immunization programs with unions
and workers before there is an outbreak.

The Canadians found
little or no role for coercion, but a critical role for the government
and employers to provide support to allow individuals to stay home
without loss of income and with adequate medical care and food. The
response in the United States was to pass even more quarantine laws, to
provide bench books to judges on how to enforce those laws, and to
encourage local law enforcement to think about their rules of
engagement when enforcing quarantine - do you shoot the soccer mom
fleeing with the minivan full of children?

There have been no
provisions for the nearly half of workers without paid sick leave, for
workers with infected family members who will lose pay if they stay
home, for health care for the uninsured. The huge population of
undocumented aliens and the legal and illegal underground economy have
been ignored, yet we know those who participate in the underground
economy are not likely to honor snow days and other social distancing
strategies because they do not eat if they do not work.

What Will We Not Learn From H1N1?

The
best outcome for H1N1 is that we have relatively few cases and deaths,
we will develop a vaccine over the summer, we will conduct an orderly
vaccination program in the fall, and H1N1 will become just one virus on
the list we consider for each seasonal flu vaccine. (For perspective,
remember that yearly flu outbreak results in a few million cases and
10-20,000 deaths, with no great disruption in life and the economy.) We
will look back and realize that it would have been nice to have more
epidemiologists in the states with cases, and the states and the
federal government will increase funding and job protections for expert
staff at health departments.

More likely, whatever the outcome
of H1N1, the result will be more laws benefiting more interest groups
and politicians' reelection campaigns, and no long-term support for the
public health system.

Edward P. Richards III
is Harvey A. Peltier Professor of Law at the Louisiana State University
and Director of the Program in Law, Science, and Public Health.

I find a good deal to agree with in Prof. Richards' column, but I fear that he paints with too broad a brush.

Prof.
Richards is of course correct that crises, and associated panic (of the
sort promoted by the nonstop cable news outlets competing for viewers,
properly lambasted on the Daily Show), tend to result in ill-considered
emergency legislation (think PATRIOT Act in another context), often
with unforeseen negative consequences (or carefully plotted ones for
which the emergency provides a pretext: think PATRIOT Act). Often
proper enforcement of pre-existing laws and regulations, coupled with
adequate resources, would be far more effective in preventing or
mitigating crises than emergency legislation will do in reacting to
them (think banking and securities laws and regulations in our current
financial meltdown).Finally,sensitive facilitation of desirable
private actions can constitute far sounder public policy than punitive
and coercive measures, as Prof. Richards' comparison of Canadian and
American responses nicely illustrates. So far, so good.

But I am
not so convinced by other aspects of Professor Richards' catalog. Did
our punitive and self-defeating war on drugs really result from, and
remain in place because of, classical public health concerns--or does
this reflect certain puritanical tendencies deep in American culture
(think Prohibition) and the interests of the law
enforcement-prison-industrial state? For many years, public health
authorities have promoted a harm minimization strategy that has thus
far had minimal impact on deconstructing the war on drugs (even
recreational drugs posing relatively minor risks to public
health)--although perhaps a moment of at least minor reform may be
approaching. To be sure, the picture is not entirely uniform; the
hysteria in the early days of crack cocaine, and the rush to impose
severe penalties disproportinate to penalties on powder, did result in
part from public health concerns, and did result in starkly different
law enforcement responses on users in minority communities than for the
economic elites able to afford their drugs of choice.

The AIDS
example is also more complex, involving challenging conflicting
approaches and priorities between medical confidentiality and
protection of civil rights for those known to be afflicted. From this
distance, one can reasonably argue that we did not get the balance
right in real time, and that a different balance might have don e a
better job of reconciling civil rights with disease prevention. But the
fact that laws were eventually modified is not in itself conclusive; as
scientific knowledge improved, hysteria diminished, civil rights
protections were solidified (at least in some respects), the disease
became more treatable, and HIV-infected individuals became less
isolated and stigmatized, circumstances changed and the appropriate
legal adjustments could follow--not least because the problems sought
to be addressed had changed.

This highlights what I hope may be
another area of potential agreement. Crises makes it easier to rush
legislative changes through--including those that are ill-considered.
It is often--certainly sometimes-- the case that thoughtful and
well-considered legislative or regulatory approaches have been prepared
in calmer times, but cannot achieve the political support or momentum
necessary for enactment in the absence of a crisis. Not all law is bad,
although we can probably identify some of the circumstances conducive
to better, or less well considered, legislative or regulatory
proposals. We need to do better in that dimension, although I am not
convinced we have figured out just how to accomplish that.

We
have become in increasingly aware of the global nature of many emerging
health threats, and of marked disparities in the capacities of
different societies to respond in open, timely, and appropriately
resourced fashion. For all the difficulties in the American system of
federalism and divided control over health matters, the problems at the
international level are far more formidable. Whether law is the best
instrument here is yet to be determined. Perhaps Professor Richards
will address that aspect of the issue in a future posting; I look
forward to hearing his thoughts.

Alan Jay WeisbardAssociate
Professor (retired) of Law and of Medical History and Bioethics,
University of Wisconsin Schools of Law and of Medicine and Public
Health, and former Executive Director, NJ Bioethics Commission